Last week’s piece about the Michigan radio station that got caught illegally using a Meghan Trainor song in a commercial generated quite a bit of interest and response.
A few days before it appeared, Tim Edwards wrote to me:
“We all know you can’t use a popular song in a commercial — unless you secure all the necessary rights. And of course you couldn’t use clips from a TV show in a commercial as well, but this question was raised to me this morning:
“Why is it legal to use TV and movie clips within a radio show? My answer is ‘fair use.’
“But why then is it legal to use them in station promos and imaging? Darn near every station I’ve ever listened to has TV and movie clips in show promos, montages, and other imaging pieces. How many times have you heard that woman yell ‘Wow, it sure doesn’t taste like tomato juice’ from the old V-8 commercials? How many morning shows rely on random TV and movie clips?
“I’ve got one guy who insists that’s exactly the same as using a popular song in a commercial. I told him no, but I don’t know why.
“What’s the difference and what’s the law?”
I told Tim I’d address his questions here but that “every instance you cited is illegal; ‘Fair Use’ doesn’t apply to any of them.”
I’d estimate that 90% of the time I hear someone defend their unauthorized use of someone else’s intellectual property as “Fair Use,” they don’t have a clue what they’re talking about.
“Fair Use” doesn’t apply simply because someone declares it does.
I wrote an entire book about what’s legal and what’s illegal when broadcasting copyrighted material. The book isn’t lengthy. It’s not difficult to read. But many radio people prefer to believe that what they want to be true is true rather than to do even a tiny bit of research.
Technically, one cannot accurately state, “This isn’t copyright infringement due to Fair Use.”
As the I.P. attorney I interviewed for the book says, “If you’ve gotten yourself into a situation where you’re saying, ‘Oh, but it was Fair Use,’ then you’ve really dug a hole for yourself. Any good intellectual property or copyright attorney would try to keep it so you wouldn’t have to fall back on that.”
The guy who told Tim that using pieces from copyrighted commercials, TV shows, movies, etc. is “the same as using a popular song in a commercial” isn’t that far off…but in the wrong direction.
Using a popular song in a commercial without obtaining a license to do so is a copyright violation. Using drop-ins, wild tracks and musical themes from TV shows, films and commercials is, too — unless you’ve obtained a license to do so.
If your station pays BMI/ASCAP fees and you play a TV theme song from an album of TV theme songs whose copyrights are administered by BMI or ASCAP, you don’t have a problem…unless you use it in a commercial. Your station pays those fees for the right to use the material in its programming, not in its advertising.
If that V-8 commercial still is copyright protected and you haven’t somehow obtained permission to use it, you’re violating the copyright. Just as you are when you play Clara Peller demanding, “Where’s the beef?”
“Somehow obtaining permission” can include collections assembled specifically for broadcast use, for which the collection’s publisher has secured the necessary permissions.
If someone obtains permission to provide radio stations with drop-ins from TV shows, licensed for airplay, you’re in the clear.
But if you record Homer Simpson directly from a broadcast of The Simpsons and use it as a drop-in, you’re courting two types of trouble:
1) Copyright violation
2) Violation (for U.S. stations) of the FCC’s prohibition on rebroadcasting other broadcast stations.
“So you’re saying that when ABC Radio sent us a three hour feed of holiday themed clips from various TV shows (certainly not all ABC shows) to hundreds of radio stations, with holiday themed clips for Christmas, Halloween, 4th of July, etc., this was illegal? And they sent hundreds of clips, drops, TV themes, etc, with no holiday theme, all of which are illegal for their stations to use?”
If the person in charge of that 3-hour feed was smart, ABC obtained any necessary licenses for rights they didn’t already own.
If ABC Radio provided stations with hundreds of clips from movies, TV shows and music which are under copyright and those copyrights aren’t owned by ABC, for it to be legal that would’ve had to obtain the appropriate licenses.
When the Cartoon Network published, via Rhino Records, a “Cartoon Medley” of theme songs from 36 programs that aired on their network, they owned the copyrights to many of them (“The Powerpuff Girls,” “Dexter’s Laboratory,” etc.).
Other songs on the CD, however, were “used by permission” or “courtesy of” the outside copyright holders. “Underdog,” for example, was used by permission of Loramu Music.
On the other hand, “Tom and Jerry” was licensed from Turner Records and “Animaniacs” was licensed from Warner Brothers. “Licensed from” suggests that payment of some kind was made.
Whoever produced that CD for the Cartoon Network understood the necessity of obtaining permission from the copyright holders.
Hopefully ABC Radio (which, remember, is quite different from and has fewer resources than ABC Television) understood it, too.
“I listened during the mid day today, to about 8 different FM stations and every one of them were using bits and pieces from TV, movies, news, TV commercials, etc. and they’re all illegal?”
I have no way of knowing what percentage is illegal. Perhaps some are obtained from show prep services that obtain the appropriate licenses before providing them to radio stations for airplay.
This is the First E-Book I Ever Published.
I published THE ULTIMATE, NON-LAWYER’S GUIDE TO COPYRIGHT INFRINGEMENT IN RADIO COMMERCIALS…And How To Avoid It because I couldn’t go a week without receiving a phone call from someone at some radio station who would begin the conversation with, “I wonder if you can settle an argument here…”
It’s sold pretty well since then, people seem to find it helpful…and now I respond to those phone calls and emails by saying, “Here. I wrote this book for you…”